JUDGMENT
G.S. Singhvi, J.
1. Feeling aggrieved by the award dated May 2. 1995 passed by the Labour Court, Ludhiana, the petitioner has filed this petition with the prayer to quash the impugned award and to direct the Labour Court to decide the dispute on merits.
2. The petitioner was appointed as Medical Representative of M/s.Cipla Limited with effect from January 8, 1985. His service was terminated on June 18, 1990 after a domestic enquiry was held by the employer. The dispute raised by him came to be referred to the Labour Court, Ludhiana by the Punjab Government’s order dated April 10, 1991. After the dispute remained pending adjudication for over three years, respondents No. 2 and 3 filed an application dated March 10, 1995 for rejection of the claim of the workman. The petitioner contested that application by alleging that his case was covered by the provisions of Sales Promotion Employees (conditions of Service) Act, 1976 (hereinafter referred to as ‘1976 Act’). After hearing the parties, the Labour Court upheld the contention raised on behalf of respondents No. 2 & 3 that the reference was not maintainable. In arriving at this conclusion, the Labour Court relied on a decision of the Supreme Court in H.R. Adyanthaya etc. etc. v. Sandoz (India) Limited, etc. etc., (1995-I-LLJ-303). The Labour Court also held that the provisions of Section 6(2) of 1976 Act’ stand omitted by virtue of Section 24 of the Industrial Disputes (Amendment) Act, 1982 and the petitioner was not entitled to the benefit of that provision.
3. The main question, which requires determination by this Court, is whether a dispute raised by a sales representative/Medical representative can be tried under the Industrial Disputes Act, 1947. The ancillary question which would require adjudication by this Court is whether the provisions of Section 6(2) of ‘1976 Act’ stand omitted by virtue of the Industrial Disputes (Amendment) Act, 1982.
4. Before coming to the main question, we may mention that the various provisions contained in the Industrial Disputes Act, 1947, have been amended by the Industrial Disputes (Amendment) Act, 1982 (Central Act No. 46 of 1982). Section 1 (2) of the Amendment Act provides that it shall come into force on such date as Central Government may, by notification in the Official Gazette, notify. By virtue of Section 24 of the Amendment Act No. 46 of ‘1982 Act’, Section 6(2) of ‘1976 Act’ has been omitted. The provisions contained in Clauses ‘a’ ‘b’ ‘d’ to ‘k’ of Section 2 and Sections 3, 4, 5, 6, 8, 9, 10, 11, 12, 14, 15, 16, 17, 18, 19, 20, 21 and 23 of the Amendment Act have been brought into force by notification No. S.O. 606(E) dated August 21, 1984. This shows that in its wisdom, the Central Government has not given effect to Clause 24 of Amending Act No. 46 of 1982 Act’. As a logical consequence, it will have to be held that Section 6(2) of ‘1976 Act’ has not been omitted and it continues to remain in force.
Coming to the main question, we may deem it proper to reproduce Section 2(d) and Section 6(1) and (2) of 1976 Act’ which read as under:
“2(d). ‘sales promotion employees’ means any person by whatever name called (including an apprentice) employed or engaged in any establishment for hire or reward to do any work relating to promotion of sales or business, or both, but does not include any such person:
(i) who, being employed or engaged in a supervisory capacity, draws wages exceeding sixteen hundred rupees per mensem; or
(ii) who is employed or engaged mainly in a managerial or administrative capacity;
Explanation:- For the purpose of this clause, the wages per mensem of a person shall be deemed to be the amount equal to thirty times his total wages (whether or not including, or comprising only of, commission) in respect of the continuous period of his service falling within the period of twelve months immediately preceding the date with reference to which the calculation is to be made, divided by the number of days comprising that period of service.”
“Application of certain Acts to Sales Promotion Employees.
(1) The provisions of the Workmen’s Compensation Act, 1923 (8 of 1923), as in force for the time being, shall apply to, or in relation to, sales promotion employees as they apply to, or in relation to, workmen within the meaning of that Act.
(2) The provisions of the Industrial Disputes Act, 1947 (14 of 1947), as in force for the time being, shall apply to, or in relation to, sales promotion employees as they apply to, or in relation to, workmen within the meaning of the Act and for the purposes of any proceeding under that Act in relation to an industrial dispute, a sales promotion employee shall be deemed to include a sales promotion employee who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute or whose dismissal, discharge or retrenchment had led to that dispute.”
The definition of ‘sales promotion employees’ reproduced above, shows that any person employed or engaged in any establishment for hire or reward to do any work relating to promotion of sales or business or both is included within the ambit of it However, those engaged in supervisory capacity and drawing wages exceeding sixteen hundred rupees per mensem are excluded from this definition. Similarly, those who are engaged in mainly managerial or administrative capacity are also excluded. By Section 6(2), the provisions of the Industrial Disputes Act, 1947 have been made applicable to sales promotion employees as they apply to the persons who are workmen within the meaning of the Act and for one purpose of any proceeding under that Act in relation to an industrial dispute, a sales promotion employee who has been dismissed, discharged or retrenched in connection with or as a consequence of such dispute. On a plain reading of these provisions, it becomes clear that even though employees engaged in the promotion of sales of business may not fall within the definition of ‘workman’ under Section 2(s) of ‘1947 Act’, they have been treated as workmen by virtue of deeming clause incorporated in Section 6(2) of 1976 Act.’
5. In M.R. Adyvanthaya v. Sandoz (India) Ltd. (supra), their Lordships of the Supreme Court were called upon to decide three issues, namely, (i) whether the medical representatives are workmen under Section 2(s) of the Industrial Disputes Act, 1947, (ii) whether a complaint made by a medical representative to the Industrial Court under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practice Act, 1971 is maintainable, and (iii) whether dispute raised by a medical representative can be referred to under the Industrial Disputes Act, 1947 with the assistance of Section 6(2) of ‘1976 Act’. Their Lordships of the Supreme Court analysed the provisions of ‘1947 Act’, the Maharashtra Act and ‘1976 Act’ and held that:
“(i) Medical representative does not fall within the definition of ‘workman’ under Section 2(s);
(ii) Complaint made by the medical representative is not maintainable under the Maharashtra Act;
(iii) Provisions of Industrial Disputes Act are applicable to the medical representatives after March 6, 1976.
Some of the observations made by the Apex Court are quite relevant for the purpose of this case and, therefore, these are reproduced below:
“The SPE Act was amended by the Amending Act 48 of 1986 which came into force w.e.f May 6, 1987. By the said amendment, the definition of sales promotion employee was expanded so as to include all sales promotion employees without a ceiling on their wages except those employed or engaged in a supervisory capacity drawing wages exceeding Rs. 1,600 per mensem and those employed or engaged mainly in managerial or administrative capacity.
Section 6 of that Act made the Workmen’s Compensation Act, 1923, Industrial Disputes Act, 1947, (the ID Act), Minimum Wages Act, 1948, Maternity Benefit Act, 1961, Payment of Bonus Act, 1965 and Payment of Gratuity Act, 1972, applicable forthwith to the medical representatives. Sub-section (2) of the said Section while making the provisions of the ID Act, as in force for the time being, applicable to the medical representatives stated as follows:
“(2) The provisions of the Industrial Disputes Act, 1947 (14 of 1947), as in force for the time being, shall apply to, or in relation to, sales promotion employees as they apply to, or in relation to, workmen within the meaning of that Act and for the purposes of any proceeding under that Act in relation to an industrial dispute, a sales promotion employee shall be deemed to include a sales promotion employee who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute or whose dismissal, discharge or retrenchment had led to that dispute,”
In other words, on and from March 6, 1976 the provisions of the ID Act became applica
ble to the medical representatives depending
upon their wages up to May 6, 1987 and
without the limitation on their wages there
after and upon the capacity in which they
were employed or engaged.”
It is also interesting to note that while rejecting the claim of the workmen with reference to the provisions of Maharashtra Act, their Lordships directed the State Government to refer the dispute under the ‘Act of 1947’ as would appear from the following observations:
“Although we hold that the complaint filed by the workmen is not maintainable under the Maharashtra Act, we are of the view that taking into consideration the fact that a long time has lapsed since the filing of the complaint, it is necessary that we exercise our powers under Article 142 of the Constitution, which we do hereby and direct the State Government to treat the employee’s said complaint as an industrial dispute under the ID Act and refer the same under Section 10(1)(d) of the said Act to the Industrial Tribunal, Bombay within four weeks from today. The Industrial Tribunal shall dispose of the reference within six months of the date of reference.”
6. In this case the Labour Court has held the reference to be not maintainable on the ground that Section 6(2) of ‘1976 Act’ has been omitted by the Industrial Disputes (Amendment) Act, 1982. Apparently, the learned Judge did not apply his mind to the notification issued by the Central Government on August 21, 1984. Had he simply bothered to go through the notification, it would have been impossible for him to record a finding that the provisions of Section 6(2) have been omitted by virtue of Section 24 of Act No. 46 of ‘1982 Act.’ The learned Presiding Officer has also failed to properly apply himself to the ratio of the decision of the Apex Court else it could not have been possible for him to ignore the fact that the Apex Court has itself directed the reference of dispute under the Industrial Dispute Act, 1947. If the Apex Court had felt that the provisions of 1947 Act’ are not applicable to the employees governed by ‘1976 Act’, there could have been no occasion for the Apex Court to give a direction for reference to the dispute. This the learned Presiding Officer of the Labour Court has failed to notice. In our opinion, manifest – injustice has been caused to the petitioner due to the failure of the learned Labour Court to properly appreciate the provisions of law and the decision of the Apex Court.
For the reasons mentioned above, we hold that the award dated May 2, 1995 passed by the Labour Court suffers from an error of law apparent on the face of it. Hence we allow the writ petition and quash the award, Annexure P.4. The Labour Court, Ludhiana is directed to decide the case on merit within a period of six months of the receipt of certified copy of this order.
The Registry is directed to send a copy of this order to the Labour Court, Ludhiana for compliance of the direction of this Court.